23/09/2022
My observations on floor staff
I have gone through your email dated 12.09.2022 by which you have asked for my legal opinion as to how we can prove that floor staff & office staff will not be entitled to get the same benefit which is allowed for workers only. For coming to a correct decision at first we need to know who is worker under Labor Act which has been defined under Section 2(65) of the Labor Act, 2006 which states that worker means any person including an apprentice employed in any establishment or industry, either directly or through a contractor, by whatever name called, to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the terms of employment are expressed or implied, but does not include a person employed mainly in an administrative or managerial capacity or one who is performing the role of a supervisory officer.
Now the question is who are the persons employed "mainly in an administrative or managerial capacity or supervisory officer", for whom the Labor Act, 2006 shall not apply.
The Labour Act, 2006 does not define who is a person working in an administrative or managerial capacity or who would amount to a supervisory officer. The definitions are provided under Rule 2 of the Bangladesh Labour Rules, 2015. The definition of supervisory officer is concerned, Rule 2(1)(Chha) provides that such a person must perform the following the functions being authorized, in writing, by the employer or the management: (i) determine target of work or service of a section of a factory or establishment; (ii) control extent of work; (iii) regulate implementation of activities; (iv) evaluate or review work; (v) give directions to workers or supervise their work.
So far the definition of administrative or managerial officer is concerned, Rule 2(1) (Nio) provides that a person would be working in an administrative or managerial capacity if he performs the following functions being authorized, in writing, by the employer or the management: (i) appoint workers or employees; (ii) determine salary and allowances, (iii) terminate service or remove from service; (iv) pay off final dues and (v) approve or regulate expenditures of the establishment.
While the functions of someone working in an administrative or managerial capacity or of a supervisory officer have been clearly laid down by the Labour Rules, 2015 but it does not clarify as to whether such a person has to perform all the functions mentioned or performing any one of the functions would suffice. It may be noted that Rule 2(1) (Nio) uses the conjunction "and", unlike, Rule 2(1)(Chha), which is later category of function which could mean that all the functions mentioned are required to be performed in order to amount to a person working in an administrative or managerial capacity. Unless there is any amendment made or circular issued by the relevant Government department clarifying this issue, the matter needs to be clarified by the judiciary. Since the 2015 Rules is relatively new, there is not much judicial guideline on the matter.
Moreover, in a case reported in 31 DLR 301 where the Hon’ble Court held that instead of considering the given designation of an employee, his nature of the job done must be considered as the key factor to see whether the given employee is a worker within the meaning of the law. In another Writ Petition No. 7208 of 2012 it has been held by the High Court Division that mere designation does not determine whether an employee is an officer or worker.
Therefore considering the laws and case references mentioned above I am of the opinion that the nature of work of an employee working in a managerial/supervisory capacity is more important than their designation to determine whether he is working in the managerial/supervisory post or not as such the authority should issue appointment letter to the floor staffs keeping the said matters in mind. The floor staff should be allowed in writing to exercise the said supervisory power and the documents by which they exercise their functions should be preserved properly for future reference.
